Big hurdles await Mattapan massacre retrial

Justice sought a second time

Credit: Herald Pool

Edward Washington, above, was acquitted
in the trial earlier this year.

Credit: Herald Pool

DEFENDANT: Dwayne Moore, above, the accused gunman in the Mattapan massacre, will be retried beginning tomorrow.

TRAGIC: Levaughn Washum-Garrison, above, was gunned down in Mattapan two years ago. His mother, Patricia Washum-Bennett hopes the outcome of the retrial will be different.

Credit: Stuart Cahill

VICTIMS: Simba Martin, above, was among the shooting victims of the Mattapan massacre.

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The gruesome details of her son’s death are about to be aired for the second time in six months. On the eve of a second Mattapan massacre trial, Patricia Washum-Bennett confined all her hopes and fears to a few words:

“This time,” she sighed recently, “I hope things turn out the way they should.”

The last time, no one answered for the execution of her son, Levaughn Washum-Garrison, along with the murders of Simba Martin, Eyanna Flonory and her 2-year-old son, Amanihotep Smith. Only Marcus Hurd survived a bullet in the head, only to spend the rest of his life as a wheelchair-bound quadriplegic.

Edward Washington was acquitted on all charges related to the massacre on Woolson Street two years ago. All that separated his co-defendant, Dwayne Moore, from a life sentence was a lone dissenting juror.

The result was an explosion of anger and frustration. This time, the jurors who will decide Dwayne Moore’s fate will be bused from Worcester.

But arguing before a transplanted jury will hardly be the only challenge confronting both the prosecution and the defense in this case.

“Usually with a retrial,” said veteran defense lawyer Robert L. Sheketoff, “advantage goes to the prosecution because the defense has played their cards in the first trial. I mean, the prosecutor now has a copy of my closing argument.” Or as fellow defense counsel Michael P. Doolin put it, “You lose the element of surprise afforded to you in a first trial by cross examination.”

Yet, that rule can be upended should a key prosecution witness completely change his testimony between trials.

Six months ago, as he lay in a reclining wheelchair, Marcus Hurd testified he came to buy weed from Simba Martin and ended up paralyzed from the neck down. He said he couldn’t identify the men accused of marching him, naked, into the street with four other people before gunning them all down.

Hurd now says the “No Snitchin’” street code kept him from identifying Dwayne Moore as the shooter. He claims that when he first saw Moore’s face on TV, he turned to his then girlfriend and said, “Baby, that’s the guy who shot me.”

Powerful stuff, except that ex-girlfriend recently testified in a pre-trial hearing that he never said that.

A big problem for the prosecution.

“When you suddenly have a witness whose memory is refreshed from the first to the second trial,” said R. Bradford Bailey, a defense lawyer and former prosecutor, “you open up the possibility for new cross examination and, with it, the potential that another witness can undermine his credibility. Mr. Hurd could definitely pose a problem for the prosecution.”

At the center of the trial once again will be Kimani Washington, an unrepentant drug dealer, pimp and armed robber who will testify he went along with Moore’s plan to rob Simba Martin, but drove off before the killings started. Another possible difference in this trial is the transcript of Dwayne Moore’s 10-hour interrogation by Boston police, which was suppressed during the first trial.

Moore admits to being at the scene that night but in a story that parallels Kimani’s, Moore claimed in his interrogation to have walked away before the shots rang out.

Moore did not take the witness stand six months ago. This time he may have nothing left to lose.